MMS Girls' Collages

Civil Assault

Anonymous has left a new comment on your post "Tape Has Disappeared!": 

You should learn the difference between civil and criminal offenses there, Perry Mason, aka anonymous

Civil Battery (Tort)

A battery is an intentional tort, as opposed to an act resulting from negligence. The elements to establish the tort of battery are the same as for criminal battery (details below), excepting that criminal intent need not be present. The elements of civil battery are:

Intent (not criminal intent to cause injury, necessarily, but intent to commit the act)
Contact (non-consensual contact with the individual or his/her effects, such as clothing)
Harm/Damages (the battery caused actual injuries, not limited to just physical harm)

For a tortuous battery to occur, the requisite intent is merely to touch or make contact without consent. It need not be an intention to do wrong and the wrongdoer need not intend to cause the particular harm that occurs. Non-consensual touching is all that is required.

The Elements of Civil Assault

Unlike battery, civil assault doesn’t require that the defendant have any physical contact with the victim. In a civil suit for assault, the plaintiff will have to prove that the following elements were present:

An intentional attempt or threat to inflict injury on another person,
Coupled with an apparent ability to cause the harm,
Which creates a reasonable apprehension of bodily harm or offensive contact in the victim

As long as the victim is placed in fear of imminent contact, no actual physical contact or injury need occur. For example, if a defendant intended to scare the plaintiff by swinging a baseball bat near him, and the plaintiff was put in fear of physical injury, the plaintiff would have a case for civil assault. 

Select Christmas

Missing Child in Pre-Civil War

Trixie--Norman's Grand daughter

New Store in Marlinton--Pocahontas Produce

Threatening Persons Who sign petitions

To permit such pressure tactics against organizations disliked by political officials is to endorse “a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion. The formula consists of coupling threats with denunciations of the activity that the official wants stamped out, for the target of the denunciation will be reluctant to acknowledge that he is submitting to threats but will instead ascribe his abandonment of the activity to his having discovered that it offends his moral principles.” Anyone who would approve of such tactics, said the court, is “giving official coercion a free pass because it came clothed in what in the absence of any threatening language would have been a permissible attempt at mere persuasion.”

Backdoor Zoning

WV Law

(3) A comprehensive plan should be the basis for land development and use, and be reviewed and updated on a regular basis;

(4) A goal of a governing body should be to reduce sprawl;

(5) That planning commissions prepare a comprehensive plan and governing bodies adopt the comprehensive plans;

(6) Governing bodies, units of government and planning commissions work together to provide for a better community;

(7) Governing bodies may have certain regulatory powers over developments affecting the public welfare; and

(8) Based upon a comprehensive plan, governing bodies may:

(A) Enact a subdivision and land development ordinance;

(B) Require plans and plats for land development;

(C) Issue improvement location permits for construction; and

(D) Enact a zoning ordinance.

Christian Persecution in Elkins

Randolph Co. church sues over banning of property sale

Kyla AsburyDec. 1, 2015, 9:12am

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ELKINS – Summit Church and the owners of the property that it uses for Sunday services are suing the Randolph County Development Authority after they claim it is violating the U.S. Constitution by refusing to let the owners sell the property to the church.

Due to lack of space in its current location, Summit Church holds Sunday morning services at the American Mountain Theater in Elkins and has been holding services there since 2012, according to a complaint filed in the U.S. District Court for the Northern District of West Virginia.

In August, the church and Kenny and Beverly Sexton, the owners of the property, began to discuse a sale of the property to the church and, after discussions, it was agreed that the church would purchase the property from the Sextons and then lease space to the theater for five years, according to the suit.

The plaintiffs claim under the sale to the church, activity to the property would be largeley unchanged from the present land use as church activities would take place on Sundays and the theater would continue to hold performances on the property.

In 1997, the Authority purchased the former CSX railyard and depot for the purpose of developing the area and the Authority resold individual parcels of the former railyard to various buyers, according to the suit.

The plaintiffs claim when the Authority sold individual parcels to new buyers, the buyers took the parcels subject the the Building Covenants and Standards for the Elkins Railyard.

The Coventants were established by the Authority for the express purpose of redeveloping the former railyard as a “commercial mixed-use district that refelcts the history and culture of the site,” according to the suit.

The plaintiffs claim churches and other religious assemblies are not listed as a permitted use or a prohibited use in the Covenants.

On Oct. 26, Randolph County Development Authority held a special meeting to discuss the proposed sale of the property to the church and the Authority determined that the church is not an acceptable land use in the former railyard and thus, the proposed sale would violate the Covenants, according to the suit.

The plaintiffs claim this was despite the fact that the Covenants regulate the use of properties, not the ownership, and the actual use of the property would not change appreciably under the propsed sale.

The Authority orderethe Sextons to inform the Authority within 14 days that they would not convey the property to the church and threatened a lawsuit if they did not comply with that demand, according to the suit.

The plaintiffs claim the defendant is violating the right to free exercuse guaranteed by the First Amendment to the U.S. Constitution.

The defendant is also violating the right to equal protection guaranteed by the 14th Amendment of the U.S. Constitution, according to the suit.

The plaintiffs are seeking an order to enjoin the defendant from enforcing the Covenants in such a way that ban churches, while permitting similarly situated non-religious assemblies and institutions in the former railyard; damages; and further relief. They are being represented by E. Ryan Kennedy of Robinson McElwee; and Daniel P. Dalton of Dalton & Tomich.

The case is assigned to District Judge John Preston Bailey.

U.S. District Court for the Northern District of West Virginia case number: 2:15-cv-00082

County Commission to Pay Property Tax on Entire Property

The rental of one small place in the ARC building has resulted in a tax assessment of the County Commission on the entire property.  That state tax department has determined that property tax is due for the entire building because a portion of it was rented privately

A Strange Irony: The Slavens may get the property back for $17,000

(b) Notwithstanding the provisions of subsection (a) of this section, in rural communities, the grantor of the lands or his or her heirs or assigns has the right to purchase at the sale, the land, exclusive of the buildings on the land and the mineral rights, at the same price for which it was originally sold: Provided, That the sale to the board was not a voluntary arms length transaction for valuable consideration approximating the fair market value of the property at the time of the sale to the board: Provided, however, That the provisions of this section may not operate to invalidate any provision of the deed to the contrary.

Sale of School Property

2012 West Virginia Code
CHAPTER 18. EDUCATION
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-7. Sale of school property at public auction; rights of grantor of lands in rural communities; oil and gas leases; disposition of proceeds; lease of school property.

Universal Citation: WV Code § 18-5-7 (through 1st Spec. Sess. 2012)

(a) Except as set forth in subsection (b) of this section, if at any time a county board determines that any building or any land is no longer needed for school purposes, the county board may sell, dismantle, remove or relocate the building and sell the land on which it is located at public auction, after proper notice and on such terms as it orders, to the highest responsible bidder.

(b) Notwithstanding the provisions of subsection (a) of this section, in rural communities, the grantor of the lands or his or her heirs or assigns has the right to purchase at the sale, the land, exclusive of the buildings on the land and the mineral rights, at the same price for which it was originally sold: Provided, That the sale to the board was not a voluntary arms length transaction for valuable consideration approximating the fair market value of the property at the time of the sale to the board: Provided, however, That the provisions of this section may not operate to invalidate any provision of the deed to the contrary.

(c) The county board, by the same method set forth in subsection (a) of this section for the sale of school buildings and lands, may, in lieu of offering the property for sale, enter into a lease for oil or gas or other minerals any lands or school sites owned in fee by it. The proceeds of the sales and rentals shall be placed to the credit of the fund or funds of the district as the county board may direct.

(d) The county board may make any sale of property subject to the provision that all liability for hazards associated with the premises are to be assumed by the purchaser. In any sale by the county board of improved property in which the actual consideration is less than ten thousand dollars or in any sale of unimproved property in which the actual consideration is less than one thousand dollars, the county board shall make any sale of property subject to the provision that all liability for hazards associated with the premises are to be assumed by the purchaser. The county board shall inform any prospective purchaser of known or suspected hazards associated with the property.

(e) Except as provided by the provisions of subsection (b) of this section, where a county board determines that any school property is no longer needed for school purposes, the county board may, upon determining that it will serve the best interests of the school system and the community, offer the property for lease. The procedure set forth in subsection (a) of this section relating to sale of school buildings and lands shall apply to leasing the school property. Any lease authorized by the provisions of this subsection shall be in writing. The writing shall include a recitation of all known or reasonably suspected hazards associated with the property, an assumption by the lessee of all liability related to all hazards, whether disclosed or not, and provisions wherein the lessee assumes all liability for any actions arising from the property during the term of the lease.

(f) Notwithstanding any provision of this section to the contrary, the provisions of this section concerning sale or lease at public auction may not apply to a county board selling, leasing or otherwise disposing of its property for a public use to the state of West Virginia, or its political subdivisions, including county commissions, for an adequate consideration without considering alone the present commercial or market value of the property.

Levies Aren't the Answer

We learned recently that Pocahontas County Schools has been neglecting its maintenance budge.  Why?  We don't know!  Is it to pass a levy?  Probably!  Our neighboring county has heartburn about a levy and now a levy is being considered by our board of education.

Homestead placed on closure list

December 2, 2015

By Chris Lee - Senior Staff Writer (clee@theintermountain.com) , Inter-Mountain

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ELKINS - A failed attempt to renew the current education levy has left the Randolph County school system's financial status uncertain moving into the future - and officials are preparing for the possibility they may eventually have to close a school.

The Randolph County Board of Education voted unanimously to amend the county's 10-year Comprehensive Educational Facilities Plan Tuesday, identifying Homestead Elementary School as a potential closure school, joining Valley Head Elementary on the list.

The updated plan will now be sent to the West Virginia School Building Authority and the West Virginia Department of Education.

Before the Board voted, Assistant Superintendent Rich Carr updated officials on the proposed changes to the C.E.F.P report, which included an amendment to finalize a Board decision adding Valley Head to the closure list, project and student population updates and an energy report for each of the county's facilities.

Carr noted that although Valley Head has been added to the list, there are no immediate plans to close the facility.

After Carr's report, Board member Harvey Taylor asked Finance Director Brad Smith if the county school system could afford to keep all its facilities open without the financial support of a levy or bond call.

"We were told a year ago if the levy fails, it would be hard to handle the budget with that many schools," Taylor said. "If we run a levy in May and it fails, can we operate all the schools without a levy?"

Smith replied it would "continue to be difficult."

"We'll be operating at the minimal or below, as far as being able to upkeep the facilities and so forth," he said. "If we have a rebound in student population, that could change the whole picture - but I don't think that's going to happen."

Smith said if school populations continue to drop at the rate of recent years, it will accelerate the financial issues.

"We're operating well below the state average of number of kids in a school," he said. "Anytime you're doing that you'll have a hard time."

Taylor brought up multiple, significant maintenance concerns at Homestead Elementary School, including a leaky roof which could create mold concerns this winter, asbestos under the floors, an outdated electric system and plumbing issues. The building is also in need of a new heating system and windows.

"I'm just looking at what's going on with Homestead right now and I wonder if we have enough (funds) if the ceiling falls in - or to remove the mold," he said.

Superintendent Pam Hewitt said Homestead is a huge concern for school officials.

"I'm really worried that the phone could ring anytime to tell us that we have major issues up there," she said.

Board member Donna Auvil said her biggest concern is safety.

"I don't want someone to get hurt," she said. "It's all about the kids and safety."

After further deliberation, board members unanimously agreed to revise the presented CEFP by adding Homestead Elementary to the closure list.

"We're in a situation there and I'm just looking at the future," Taylor said. "I don't want (officials) to be working hard and have to come back and say 'where are we going to get the money?'"

Later in the meeting, board members unanimously approved the revised C.E.F.P. for submission to the WVSBA and WVDE.

"At any time, we can bring this back to the board and we can change it," Hewitt said. "It's not like we're closing the schools. We're just trying to look at where we are right now."

After the meeting, Hewitt said the closure status of Homestead Elementary documents the poor conditions of the building and the areas that need to be improved. She said the roof is currently leaking and maintenance staff have been working diligently to patch it in an attempt to reduce the leaks.

"The administration and Board members are concerned about the safety and well-being of the 123 students and 18 staff at the school if the school continues to deteriorate," she said.

Hewitt emphasized it's essential for everyone to understand the Board did not approve closing Homestead Elementary during Tuesday's meeting.

On June 2, officials voted to add Valley Head Elementary to the closure list, citing a dwindling student population and financial concerns. During that meeting, Treasurer Brad Smith projected the annual cost of running the school is $350,000 to $500,000, with a cost per student equating to between $10,000 to $12,000 each year.

Harman School, Coalton Elementary and Homestead Elementary Schools had been listed as closure schools on the original CEFP when it was drafted in 2010, but those schools were released from the designation in October 2014.

Also at Tuesday's meeting:

Hewitt unveiled banners purchased using grant funds that will be placed in all county schools promoting the importance of good attendance.

Officials agreed to allow Elkins High School Band Director Joseph Bowen, Hillary Barlow and band students to travel from March 6-11 to Orlando by charter bus, where the band will participate in a variety of entertaining and educational events at Disney World. Of 103 band students, 95 will be attending. The trip will be funded using EHS Band Dollar Accounts and Levy dollars. Substitutes will be paid for using EHS General Fund and Band Auxiliary funds.

Tygarts Valley High School Senior David Ratzer, serving in the role of student representative to the board, presented to officials about the diversity of clubs available at Tygarts Valley Middle/High School. Some of the clubs available to students at the school include Fellowship of Christian Athletes, Recycling Club, Walking Club, Skiing/Snowboarding Club, Chess Club, Art Club, Guitar Club, Anime Club, Archery Club, National Honors Society and Book Club.

"I think there is just about a club up there for everybody," he said.

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